Comments in chart lead to a lawsuit

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Ms. C, 54, sighed to herself when she saw the patient in the waiting room again. As a nurse practitioner working for a family practice, Ms. C both helped the physicians and saw patients of her own. This particular patient was one who came to see Ms. C specifically, and in her private thoughts, Ms. C wished the woman would find another practitioner.

The patient, Ms. L, was only in her early 30s, but had more complaints than most patients her age. Ms. L had been in occasionally over the past few years, but it was during the last few months that she had become a bit of a problem. The issue had begun two months earlier, when Ms. L made an appointment to see Ms. C. The patient had fallen at work, and was reporting significant pain in her back and her neck.

Ms. C ordered imaging studies, but the results showed nothing out of the ordinary, so Ms. C advised the patient to rest for a few days and prescribed a small amount of pain-killers to be taken as needed.

Within a week, however, Ms. L returned, complaining that the pain wasn’t abating. Ms. C examined her and couldn’t find anything significant, but noted that the patient might still feel some muscle strain or some pain from bruises caused by the fall. Ms. L asked for more painkillers, but Ms. C advised her to try over-the-counter ibuprofen.

“I could have killed myself!” Ms. L said to Ms. C. “The floor at work was wet and those lazy janitors didn’t wipe it up fast enough. I fell flat on my back, and the pain has been excruciating ever since.”

“I’m filing a workers’ comp claim,” Ms. L announced to Ms C. “The janitors at my job should have been more careful. I haven’t been able to go back to work since the fall because the pain is so bad.”

Over the next six weeks, Ms. L returned to see Ms. C at least four times, each time complaining that the pain was unremitting and that she wasn’t improving. “I’ve heard that Percocet [oxycodone and acetaminophen] or Vicodin [hydrocodone and acetaminophen], or maybe Oxycontin [oxycodone], might help my pain,” Ms. L said to Ms. C. “Can you write me a prescription for one of those?”

Ms. C put off the patient each time, but did write in Ms. L’s chart that the patient was requesting painkillers by name, and that Ms. C believed the patient to be malingering.

At another visit, Ms. L again complained about her pain, her lack of improvement, and her inability to work, and again asked for medication. Ms. C declined to prescribe anything stronger than ibuprofen, and noted in the chart that Ms. L might be a drug-seeker.

On this visit, Ms. L dropped off several signed waivers, requesting that her medical chart be shared with her employer and other medical practitioners as part of her workers’ compensation lawsuit.

Several months passed with no sign of Ms. L, and then Ms. C received notice that she was being sued by her former patient for defamation. Ms. L was claiming that Ms. C had “intentionally, negligently, and/or recklessly without regard for the truth” expressed to several people that Ms. L was “a drug-seeker or abuser,” who was “committing insurance fraud by pretending to have nonexistent injuries,” and was “only trying to scam money out of workers’ compensation.”

The clinician was stunned and immediately went to consult with a defense attorney. “I never said any of those things!” Ms. C told the attorney. “I merely wrote in the chart that she was asking for painkillers and that I believed she was malingering. She had no serious injuries and should have been improving.”

The attorney explained to Ms. C that the term “defamation” includes the terms libel and slander. Libel is “false and unprivileged communication by writing…” that causes damage to the person being written about; slander is essentially the same, but the communication is verbal rather than written.

“Your former patient is claiming that your notes in the chart indicating that she might be malingering or seeking narcotics caused other medical providers to refuse to see her,” pointed out the attorney. He didn’t believe the patient had a case, and told Ms. C he would file a motion on Ms. C’s behalf to dismiss the case.

The district court judge agreed, and dismissed the case. However, the nightmare began again when Ms. L immediately appealed to the Supreme Court of the state.

Legal background

The state Supreme Court ultimately agreed with the lower court for various reasons, and dismissed the case on several grounds. First, Ms. C’s notes did not rise to the level of defamation because they were a matter of opinion, not fact, said the court. To be defamatory, a written or spoken communication must be false. Only a statement of fact can be false; a matter of opinion cannot be true or false. Thus, the court found that Ms. C’s opinions that the patient might be drug-seeking or malingering could not be defamatory.

The court also noted that Ms. L had signed medical releases before her charts were turned over to anyone. Since she had consented to the release of information, the statements in her chart were considered legally privileged, which negated an essential element of defamation—that the comments be part of an unprivileged communication.

Finally, the court stated that no evidence had been presented to prove that any medical practitioners had refused to see Ms. L based on the opinions Ms. C had expressed in the patient’s chart. The court dismissed the case against Ms. C.

Protecting yourself

Numerous practitioners have been saved from lawsuits because they took detailed chart notes that could then be used to prove that they had acted appropriately in treating a patient—for example: Yes, a certain screening test had been recommended to a patient who then refused it, or no, the patient had not been suffering from a high fever.

Clinicians have to see so many patients that remembering the details of each case would be impossible, making note-taking crucial. This need outweighs the very unlikely circumstance seen in this case, in which a patient sued her clinician for defamation based on notes written in the chart. It’s far more important to take accurate notes, including your opinions, than to leave medical charts incomplete.

Anne W. Latner, JD, is a former criminal defense attorney and a freelance medical writer in Port Washington, N.Y.

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